from the District Court of Cass County, East Central Judicial
District, the Honorable Douglas R. Herman, Judge.
A. Gereszek, DeMers Ave., for petitioner and appellant.
Jo Viste, Cass County Courthouse, for respondent and
1] Elijah Addai appeals from the district court order and
judgment dismissing his application that newly discovered
evidence entitles him to post-conviction relief. We affirm.
2] A jury convicted Addai of murder. This Court affirmed the
conviction. State v. Addai, 2010 ND 29, 778 N.W.2d
555. Addai applied for post-conviction relief arguing he
received ineffective assistance of counsel. This Court
affirmed the denial of his application in Addai v.
State, 2012 ND 50, 809 N.W.2d 833. In 2015 Addai applied
for post-conviction relief based on newly discovered
3] The relevant facts underlying Addai's criminal
conviction are as follows:
"In the early morning hours of Sunday, August 19, 2007,
a group of people gathered at an apartment in south Fargo,
including Addai; Addai's friend, Semereab Tesafaye; David
Delonais ("Delonais"); and Eric Delonais,
Delonais's cousin. There was tension at the gathering
between Tesafaye and Eric Delonais. When Delonais and Eric
Delonais left the apartment, Addai and Tesafaye followed and
a fight broke out behind the apartment building. Addai,
Tesafaye, and Delonais were involved in the altercation and
had knives. At some point during the altercation, Delonais
stabbed Tesafaye in the head, and other individuals from the
party later found him lying behind the apartment building in
a pool of blood. There was also evidence Tesafaye and Addai
may have stabbed Delonais during the fight. Delonais and Eric
Delonais attempted to run away from the scene of the fight,
but they became separated and witnesses saw Addai following
Two newspaper carriers, Roslynn Bolgrean and Mary Albertson,
were delivering newspapers approximately one block away from
the apartment building at the time of the altercation. They
heard footsteps and a commotion and saw two men running down
the street toward them. They testified one of the men was
black, wearing a light blue shirt with white numbers on the
shirt and a white scarf on his head, and he was chasing the
other man, who had a lighter complexion. The man being chased
was later identified as Delonais, and Albertson and Bolgrean
identified Addai as the man who was chasing Delonais.
Albertson testified she heard Addai say, "I'm going
to cut you, I'm going to kill you, " and saw Addai
swinging something at Delonais. Albertson testified she was
standing in the driveway of a house when Delonais ran up to
her and was close enough she could have touched him. The two
men began struggling with each other by Albertson. Albertson
testified Delonais was panicking and asked her to help him,
and then Addai stabbed Delonais in his side, although she
admitted she did not see a knife. Bolgrean testified Addai
jumped on Delonais, tousled with him, and then ran off.
Albertson testified Delonais said he had been stabbed, blood
was coming out of his side, and he asked her to help him.
Albertson and Bolgrean called 911."
State v. Addai, 2010 ND 29, ¶¶ 2, 3, 778
4] The newly discovered evidence Addai alleges in his 2015
application is the recantation of two statements Hamed Zuri
gave to police during the investigation. Zuri did not testify
at trial. At the evidentiary hearing for Addai's current
application for post-conviction relief, Zuri testified he
told police nine years earlier he saw Addai with a knife and
saw him stab Delonais. Zuri now recants because he believes
he did not see Addai with a knife or see him stab Delonais,
but believes Delonais had a weapon and made a gesture towards
Addai. Zuri testified Delonais was the aggressor and Addai
may have been acting in self-defense. According to Zuri, he
witnessed the first altercation outside of the apartment but
was not present during the events leading up to the fatal
5] The district court entered an order and judgment denying
Addai's claim of newly discovered evidence and dismissing
his application for post-conviction relief, finding the
evidence had ...